Legal Question

[Big Mike]

I assume you've never been to a comic convention, so I will tell you how it works.

A BUNCH of artists, mostly pencilers, do sketches all day long. You walk up to an artist and ask what he charges. He might say 20 bucks for a page, and then you tell him you want something... like "Spider-Man hanging upside down with a beer" and he will draw it.

Now sometimes these artists have worked on these books, but in a copyright standpoint, that doesnt matter. None of the artists who have worked on Spider-Man own him, they just are hired to pencil him.

I get that part and I still think it's probably an infringement of the law...but as the lawyer said, if they don't get too greedy, nobody would care.

 

[RMThompson]

Your right Mike. I am positive that TECHNICALLY speaking it's an infrigement, same as someone making their own Darth Vader costume, but unless someone was making a TON of money on it, I don't think they'd care because it ends up PROMOTING their copyrighted characters.

 

[skieur]

To make a point, logos even for fictious cartoon characters are subject to trademark law not copyright law and there is a difference.

The test of infringement for trademark law is "passing off" or "confusion".
Is the person in the Spiderman costume "passing himself" off as the "real" Spiderman or perhaps the "licensed Spiderman"? or for that matter the movie version of Spiderman? Would a viewer seeing someone in a batman costume "confuse" him for the "real" Batman or perhaps the movie version of Batman?

I would tend to think that in the case of most photos of someone in a cartoon character costume, the answer would be a definite NO and therefore there would seem to be no infringement of trademark law.

skieur

 

[skieur]

Your right Mike. I am positive that TECHNICALLY speaking it's an infrigement, same as someone making their own Darth Vader costume, but unless someone was making a TON of money on it, I don't think they'd care because it ends up PROMOTING their copyrighted characters.

Not quite correct, unless someome made their own Darth Vader costume so well that it could be "passed off" as the real Darth Vader costume from the movie. I don't think that most viewers of the costume would ever confuse a homemade costume for the real thing and if they did not, there would seem to be no trademark violation.

skieur

 

[skieur]

Not sure what attorney's charge in your area but my attorney charges $150/ hour which translates to $37.50 for 15 minutes of time, which is all it should take for an attorney to answer the question you have posed. For $37.50 if the attorney say's no problem, you can do your project with out worrying about it and if the attorney say's no way then you would save yourself lot's of $$$$, time & agrivation in a lawsuit. Seems a small price to pay for piece of mind.

Dealing with civil lawyers on a regular basis, I find many have a bias on the prosecution side in the area of copyright, design, and trademark law. To get a straight answer you really have to know how to specifically phrase the right question. Even when I cornered one expert copyright lawyer publically in a conference during question period, she was reluctant to admit that a copyright of a business no longer existed, if the company no longer existed and their assets were not sold.

skieur